Eye in the Sky: The Legality of Drones in Police Searches

Winston Smith

There are drones flying over the air randomly that are recording everything that’s happening on what we consider our private property. That type of technology has to stimulate us to think about what is it that we cherish in privacy, and how far we want to protect it and from whom.– US Supreme Court Associate Justice, Sonia Sotomayor

The use of technology for law enforcement purposes is a hotly contested issue. Government entities like the National Security Agency and the FBI have been exposed taking part in prolific electronic mass surveillance and data collection on a national scale. We now see that advancements in technology have become so prolific that they are commonplace in state and local law enforcement. From biometrics to body cameras, police around the nation have begun utilizing these new technologies for law enforcement purposes. While this technology is meant to be used to help law enforcement more effectively carry out their role of protect and serve, as we have seen through various exposés, this is not always the case. We should all be weary of advanced technologies, specifically electronic surveillance, that are used by law enforcement agencies.

These drones are now being used for a myriad of tasks. For example, some police departments are now using drones to find suspects with thermal imaging or using them to find evidence, such as finding over $400,000 worth of stolen construction equipment. Therefore, as drones are now used in such an important law enforcement capacity, it should be apt that we review the legal requirements law enforcement face when conducting a search and the way in which drones will have an effect.

Author’s Note: Please do not take anything written here as legal advice. If you have a legal question, ask a lawyer and don’t take advice from drunkards on the internet.

Let’s say that Tom lives in a county where home distilling of gin is illegal. However, Tom decides to home distil in his backyard. Tom’s backyard is thoroughly enclosed by a fence that is regularly maintained and the surrounding area of the home contains no ways in which to peer over the fence. Word gets out that Tom is home distilling the finest gin and, now, everyone wants a sip. Unfortunately for Tom, the county sheriff has caught wind, and are now interested in the use of an unmanned drone to fly over Tom’s fence and have equipped the drone with the capability of capturing photographs and video footage of Tom’s backyard. The real question is whether or not the police are legally allowed to do this.

Well, to understand if it is legal, we must review the relevant jurisprudence surrounding searches. Therefore, we must begin with Katz v. United States, 389 U.S. 347 (1967). In Katz the Supreme Court created an important precedent in the execution of searches by law enforcement under the Fourth Amendment. In Katz the petitioner was found guilty of “transmitting wagering information by telephone across state lines.” To prove this, the FBI placed listening devices on the top of the telephone booth which Katz would make his calls. On appeal, the lower court found that his conviction was to be affirmed as law enforcement had not violated the principle of “‘no physical entrance into the area occupied by’ petitioner.” The Supreme Court reversed the conviction of Katz, finding that the search was a breach of his Fourth Amendment rights and created a two-part test to determine Fourth Amendment violations. This test is outlined in the concurrence of Justice Harlan reads “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable’.” Therefore, in Katz, it was found that a telephone booth had an expectation of and is societally recognized as a private place. This test is important for our review of the use of drones, so keep it in mind.

Additional case law provides some context to the use of drones or other aerial vehicles in the use of searches conducted by law enforcement or other government agencies. In the case, California v. Ciraolo, 476 U.S. 207 (1986), law enforcement was given an anonymous tip that the respondent was growing marijuana in his backyard. Executing on this information, law enforcement flew a plane at 1,000 feet above and visually confirmed the existence of the marijuana. Based on this eye confirmation, law enforcement was able to secure a search warrant and seized the marijuana. The Supreme Court ruled that it was unreasonable for the respondent to have an expectation of privacy as “[t]he mere fact that an individual has taken measures to restrict some views of his activities does not preclude an officer’s observation from a public vantage point where he has a right to be and which renders the activities clearly visible.” In this, the Court found that when using the two-part test provided by Katz, society was not prepared to recognize Ciraolo’s expectation of privacy in his backyard. So, the fact that Tom may have staged his gin distillery under his old, broken tarp does not automatically mean that the law is going to give him a reasonable expectation of privacy.

In Dow Chemical v. United States, 476 U.S. 227 (1986) the EPA conducted a flight and took photographs of a company’s complex after being denied entry to conduct inspections. The aircraft used by the EPA operated between the altitudes of 12,000 to 1,200 feet and was constantly within navigable airspace. In this, the Supreme Court ruled that the “aerial observation and photography” was within the bounds of the EPA in under their “enforcement and investigatory authority.”

Florida v. Riley, 488 U.S. 445 (1989) is a case similar to California in that law enforcement received a tip that Riley was growing marijuana in a greenhouse on the respondent’s property. The greenhouse was shielded from view on the ground and, as a result, law enforcement commissioned the use of a helicopter to search the property from the sky. At an altitude of 400 feet, the helicopter circled the house twice obtaining photographs which led to a warrant and confiscation of the marijuana. The Court ruled that “the Fourth Amendment does not require the police traveling in the public airways at an altitude of 400 feet to obtain a warrant in order to observe what is visible to the naked eye.” The Court noted that helicopters are allowed to fly below the lower limit of “navigable airspace for fixed-wing aircraft” so the helicopter was not in violation of FAA regulation of 500 feet. The helicopter was far enough from the curtilage that it did not interfere “with the respondent’s normal use of his greenhouse or other parts of the curtilage” noting that not even “undue noise, wind, dust, or threat of injury.” I know, there’s a significant difference between helicopters and drones, but drones flown by public safety departments are considered by the Federal Aviation Administration to be “public aircraft.”

Also, for the hell of it, we should figure out how good these photographs can be. Dow Chemical provides us with some language to provide guidance. In Dow Chemical, the Court stated that “[t]he photographs were not so revealing of intimate details as to raise constitutional concerns.” This is further explained in Footnote 2/14 in that the Court may have ruled differently if the EPA had used equipment not readily available to the public, even though the camera used did provide a large amount of detail. In many cases, including Florida, it is important to note that the Court has granted law enforcement the ability to forgo obtaining a warrant when law enforcement is able to “observe what is available to the naked eye (Florida v. Riley).”

So, can the police use their drone over Tom’s “recreational facility”? Yeah, probably. Taking all of the relevant case law into consideration, it is legal for law enforcement to fly the drone over Tom’s backyard under strict conditions. Case law sticks the lowest point for an aerial search to be at 400 feet or the lowest point of safe navigable airspace for the vehicle (Florida v. Riley). The drone must be within navigable airspace, which is possible with the positioning of Tom’s home (Florida v. Riley, Dow Chemical v. United States). The quality of the camera should not exceed what a human eye can tell and the photographs should not provide more detail than what one would see at the same altitude (Dow Chemical v. United States). It is permissible for the drone to do multiple flyovers (Florida v. Riley) but, there seems to be no established appropriate length of time for the drone to hover over the backyard, however, it should not interfere with the typical operations of Tom’s curtilage.So while the use of technology in law enforcement leaves the bad taste of an Orwellian state in our mouths, the use of drones in searches, comparably, seems to be legally “reasonable”. So Tom may be out of luck when the police roll up to find out where all his gin is coming from.